Criminal
Review
MAFUSIRE
J:
The
accused pleaded guilty to culpable homicide. He was duly convicted.
The trial court sentenced him to a fine of $200 or, in default, three
months imprisonment.
Culpable
homicide is governed by s49 of the Criminal Law [Codification and
Reform] Act, Chapter
9: 23 [“the
Code”].
The prescribed penalty is imprisonment for any period up to life, or
a fine up to, or exceeding level fourteen [i.e. US$5,000], or both.
On
scrutiny, the regional magistrate felt the sentence was too lenient.
Whilst
ruling out an effective custodial sentence, his view was that not
only did the fine have to have been higher, but also that it should
have been coupled with a wholly suspended prison term.
The
circumstances of the offence were these.
The
accused was driving from Hwedza to Harare. He was on a strip tarred
road, 2.6m wide. The tarmac was bordered with gravel edges. At the
119km peg his vehicle collided head-on with a commuter omnibus [“the
kombi”]
that was travelling in the opposite direction. It was carrying
fifteen passengers. One died. Eleven others were injured. Both
vehicles were extensively damaged.
The
accident was entirely the accused's fault.
The
particulars of negligence which were canvassed as essential elements
were:
(i)
a failure to share a strip road;
(ii)
excessive speed;
(iii)
failure to stop or to act reasonably; and
(iv)
failure to keep a proper look-out.
The
regional magistrate relied on the sketch plan. The point of impact
was the accused's wrong side of the road, outside the gravel verge.
From this, the regional magistrate argued that the accused not only
failed to keep to the left, but also that he literally crossed over
to the lane of oncoming traffic.
The
regional magistrate also noted that no contributory negligence was
being imputed to the kombi driver; that the extensive damage to the
accused's vehicle demonstrated excessive speed, especially given
that it was a strip road and that, apart from causing the death of
one passenger, eleven others from the kombi had been injured.
The
trial magistrate justified his sentence by saying that the degree of
negligence was ordinary; that the injuries suffered by the eleven
commuters were not serious; that the accused had helped with funeral
expenses; that since he earned only $500 [per month] and had been
undergoing physiotherapy every week, a fine in excess of $200 would
have been harsh and would not have reflected the mitigating features
of the offence.
In
S
v John
2013 [2] ZLR 154 [H] I said it is not every wrong decision by the
inferior court that warrants interference by the superior court.
Sentencing
is very much a matter of discretion by the sentencing court.
Only
in situations of demonstrable impropriety in the exercise of that
discretion does the superior court intervene. What may be an
appropriate sentence in any given case is ultimately a value judgment
by the sentencing court. Equally true, what may be an improper
exercise of judicial discretion by the sentencing court is also a
value judgment by the scrutinizing or reviewing court.
In
this matter, I find myself in agreement with the regional magistrate.
A
fine of $200 was so lenient as to trivialise the offence and the
circumstances surrounding its commission.
The
charge sheet said the accused failed to share the strip road with
on-coming traffic. But the sketch map showed he did worse. He crossed
the tarmac and went over to the gravel verge on the opposite side.
That is where the accident happened.
The
accused had no business being on that part of the road.
His
explanation for his being there is suspicious. In his statement to
the police he claimed the kombi driver took time to give him way.
Sensing danger he swerved his vehicle to the opposite side to avoid a
head-on collision. But, as it happened, he did not avoid the
collision. He caused it. His negligence cost someone his or her life.
The
accused's driver's licence was five years old at the time. Prima
facie
that was reasonable experience. The accident happened at 16:10 hours.
It was in the month of September. Nothing was said about the weather
conditions. But September is generally a dry and sunny period.
The
accused first saw the kombi when it was still some 139m away. That
should have been ample time to take avoiding action. But it was only
at 64m that he took some action. It turned out to be very wrong and
fatal action.
The
trial court should have been more circumspect.
Why
was the accused being so slow to react? Of course, his state of
sobriety was never investigated. So intoxication was not a factor.
But his actions remained inexplicable and suspicious, especially
given that he could not in the least estimate the speed at which he
was driving. But given the distances depicted on the sketch plan, and
given the extensive damages to both vehicles, it seems one or other
or both of them was travelling too fast.
The
kombi driver approximated his speed at 40km per hour. Generally, that
is slow. It was in the country side. So that leaves the accused as
the culprit as far as speed was concerned.
In
S
v Mtizwa
1984 [1] ZLR 230 [H] the accused pleaded guilty to culpable homicide.
He had driven onto his incorrect side of the road. He struck and
killed a motor cyclist. He could not explain why he had been on the
incorrect side of the road, or why he had not seen the motor cyclist
at any time before the accident. He was fined $200. On review, the
sentence was criticised for being disturbingly lenient. It was said
an appropriate sentence would have been one of imprisonment and a
prohibition from driving.
In
the present matter, I consider that the trial magistrate exercised
his sentencing discretion improperly.
Among
other things, he shied away from a more realistic fine of about $500
arguing that it would impoverish the accused person who was earning
the same amount per month. But, as the regional magistrate argued,
the accused could have simply been given time to pay.
The
regional magistrate felt a heavier fine, coupled with a wholly
suspended prison term, would have been more appropriate.
I
agree. Unfortunately, he did not suggest a figure or the period.
Section
49 of the Code, in prescribing for culpable homicide a period of
imprisonment of up to life, and a fine of up to $5,000, or more, was
reposing considerable discretion in the sentencing court. In my view,
that is as it should always be, rather than leave it to the
Legislature to impose mandatory sentences.
In
arriving at an appropriate sentence the sentencing court is guided by
the circumstances of the case.
Sentencing
should not be an armchair approach or a knee-jerk reaction. The
sentence should fit the offence, the offender and the interests of
society. If a manifestly inappropriate sentence is imposed in any
given situation, the system is self-correcting. The review court is
at large to interfere.
The
sentence in this case was too lenient. It calls for interference. It
is hereby set aside. It is substituted by a fine of $500, or, in
default, 5 months' imprisonment. In addition, the accused is
sentenced to five months' imprisonment which is wholly suspended
for five years on condition that during that period the accused is
not convicted of an offence involving negligent driving for which he
is sentenced to a term of imprisonment without the option of a fine.
The
trial magistrate is hereby directed to recall the accused person for
the purposes of imposing the appropriate sentence above.
6
June 2016
MWAYERA
J: I agree…………………………..……
